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8/18/2019 Torts_Full Year Frmwk

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I. DUTY OF CARE

1) Does the D owe a duty of care to the P?

a) Does the case fall within a recognized category of relationships?( Donoghue, Cooper v. Hobart )

i) Defendant’s act forseeably causes harm to the plaintiff or plaintiff’s property,ii) Defendant’s negligent misstatement,

iii) Defendant’s duty to warn of risk of danger

iv) Municipality’s duty to prospective purchases to inspect housing developments without negligence,

v) overnment authorities undertaking a policy of road maintenance to do so w!o negligence,vi) "elational economic loss (related to a contract’s performance)

vii) "elationship between claimant and property owner constitute a #oint venture$

b) %f no, then apply &nn’s 'est (Cooper v. Hobart )

i) Ste 1! Donoghue v. Stevenson Test

() ro*imity + was defendant’s relationship w! the plaintiff sufficiently close that a reasonable person would

think of the effect of the act on the plaintiff?

() -oreseeability + could a reasonable person forsee that the act would harm the plaintiff?

ii) Ste "! Po#$cy Co%s$derat$o%s . are there policy considerations that negate the duty of care? (Coopers, Syl Apps)

() ersonal autonomy ( Dobson v. Dobson)

() %ndeterminate liability (Cooper )(/) 0nforeseeable plaintiff (not strangers)

(a) 1o liability for unforeseeable ( Hay v. Young )(2) 'ype of damage (pure economic loss not included in Copper )

(a) sychological in#ury not covered in Hay v. Young , but overruled in later cases(3) -loodgates

") Is there a case of &$sfeasa%ce? 'os$t$(e duty to act)

a) eneral4 1o duty to rescue a person who is in peril from a source completely unrelated to the defendant, even whenlittle risk or effort would be involved in assisting ( Horsley et al MacLaren)

b) %s this an e*ception to the general rule because it falls into a 5special relationship6

i) "elationships of 7conomic 8enefit ( Jordan House)

() ositive duty to rescue in relationship of economic benefit$ii) "elationship of 9ontrol and :upervision (Crocker v. Sundance)

() ositive duty to either prevent in#ury or to assist others in vulnerable position

() 7*amples4 teacher!pupil; employer!employee

iii) 9reation of Danger (Oke v. e!de, Crocker )() Duty is based on foreseeability and pro*imity$ :omeone who creates a danger (even if he does so non+

negligently) is in a different position from a bystander$

iv) "eliance "elationships ( "elenko)

() %f a defendant undertakes a rescue (even if under no duty to do it) the defendant must not omit to do whatan ordinary person would do in performing the task$ imbel rinciple4 by admitting they were going to

help, they need to make a concerted effort at an attempt to rescue

v) :tatutory Duties (O#$ourke v. Schact )

() & positive duty of care may arise in tort law where there is a statutory duty() %&ergency Med!cal A!d Act + anybody who gives medical help during an emergency can’t be found liable

for in#ury or death 01


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+) Is th$s a case where the Crow% owes a duty?

a) Does this fall under &9&?() %s this an officer, agent, or employee of the 9rown? (:$3())

b) %s this policy or operational? ( Just )

i) olicy . made by higher level of authority, financial, must be made in good faith

ii) =perational . administrative, government inspections, fre>uency, manner in which carried out, time when it

should be carried outiii) 'he government may have a duty of care to a plaintiff, but this duty is negated (&nns test) if there are e*plicit

statutory e*emptions or if the government’s decision was one of policy and made bona fide as a proper e*ercise

of discretion, not operationc) 'he standard of care for government is not as high as the neighbour standard . the standard of care must be assessed

in light of all surrounding circumstances including budgetary restraints and the availability of >ualified personnel

and e>uipment ( Just )

d) 'he government can be sued for constitutional torts, even if liability is denied in statute or common law ( Jane Doe)9onstitutional 'orts@

PURE ECO,O-IC OSS FRA-E/OR0

SPECIA POICY Co%cer%s /$th Pure Eco%o&$c oss!

1) F#ood*ates Fear4 7conomic loss cases present the potential for liability in an indeterminate amount for an indeterminatetime to an indeterminate class$

2) Eco%o&$c $%terests %ot as $&orta%t4 Aave not traditionally been assigned the same value or importance as personal

safety or property interests

3) $*h cost of I%sura%ce4 'raditional reluctance to reallocate economic losses from those who suffer economic loss to

whose who cause them$4) Free &ar2et eco%o&y4 %t is generally permissible to intentionally inflict economic loss on rivals and competitors$

3Th$s ra$ses e4tra ro5#e&s for "%d sta*e of A%%s.

6) Does th$s fa## w$th$% a% a#ready reco*%$7ed cate*ory of PE?

a) Misrepresentation?

!' Hedley v. (yrne

!!' )ueen v. Cognos

!!!' Hercules v. %rnst and Young !v' (* Checo

b) 1egligent erformance of :ervice

!' (DC Ltd. v. Ho+strand ar&s Ltd.

c) 1egligent :upply of roducts!:tructures!' !nn!peg Condo&!n!u&s v. (!rd Construct!on

d) "elational ure 7conomic


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(e) 'he information or advice was given in response to a specific en>uiry or re>uest

(f) Bas there a disclaimer ( Hercules, Cognos)

(/) &re there policy reasons to negative the duty? ( Hercules)(a) Did the defendant know the identity of the plaintiff?

(b) Did the plaintiffs use the statements for the purpose for which they were made?

b) 'he representation must be untrue, inaccurate, or misleading

c) 'he representor must have acted negligently in making said misrepresentation

i) %ncludes duty to use reasonable care not to make unfounded statements or negligently failing to disclose 18information through silence$ ()ueen v. Cognos)

d) 'he representee must have relied, reasonably, on said negligent misrepresentation ( %rnst v. Young )

i) -actors to consider4 :kill of the representor, nature of the occasion, the soliciting of advice, -inancial gain,7*perience, 'he nature of the statement, the presence of any disclaimers

e) 'he reliance must have been detrimental to the representee in the sense that damages resulted

,e*#$*e%t -$srerese%tat$o% ,e*#$*e%ce

$ Duty of care owed (representor to representee) Duty of care

$ Misrepresentation

/$ 1egligence 8reach

2$ "easonable reliance 9ausation

3$ Detriment Aarm

9) Is th$s a %e*#$*e%t erfor&a%ce of ser($ces? ( (.D.C v. Ho+strand )a) %s there a duty of care owed by the supplier of services?

i) &nn’s 'est

() -oreseeability

() ro*imity!"easonable "eliance

(a) Cnowledge + of e*istence the respondent; identity of class of claimant(/) olicy reasons (indeterminancy)

b) -ailure to supply the service

c) 1egligent supply of services

d) "eliance on the servicee) Damage!detriment

:) Is th$s a re#at$o%a# ure eco%o&$c #oss?

a) Co%tractua# ' ca% a %ew cate*ory of duty 5e created us$%* A%%s Test

a) %s there a duty? ' Ann#s 3est )

i) -oreseeability

ii) ro*imity

/


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() "easonable reliance ( Hercules)

(a) -actors4

(b) Did D have financial interest?(c) rofessional

(d) "e>uest

(e) :eriousness (deliberate or social)

(f) 9ourse of business

(g) Disclaimer? ( Hedley, Cognos) b) olicy ( Hercules)

i) %e$ indeterminancy

ii) %dentity of who will be affected must be known in advanceiii)


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+) Is the defe%da%t he#d to a #ower sta%dard?

a) 9hildren? ( He!sler v.Moke)i) 'wo art 'est4

() Determine if the child can be held liable at all (ob#ective)

() & child of like age (tender years), intelligence, and e*perience (some sub#ectivity)

6) -e%ta#Phys$ca# D$sa5$#$ty? ( !ala)a) 1o capacity to appreciate the standard of care or to act like a reasonable person, ="

b) 1o control!not able to discharge the appropriate standard of care

III. CAUSATIO,

1) /h$ch causat$o% test to a#y?

a) ut for test . general

b) -od$f$ed O5ect$(e Test . "easonable person in same situation ( $e!bl )c) -ater$a# Co%tr$5ut$o% Test

i) %f other test would result in unfairness ( Athey v. Leonat!)

ii) Multiple 9auses ( a!rch!ld, Hanke, Cook )

iii) Multiple D’s ( Lea&an)

") /ho has the 5urde% of roof?

a) uence is thatthe onus is shifted to the wrongdoer ractical 7ffect is that Def now has to prove that they’re not negligent@

(Snell, Cook )

) ow do we aort$o% fau#t?

a) 'ortfeasor is liable for restoring plaintiff to the position he would have been in absent the defendant’s negligence

(even if those in#uries turn out to be more :7F7"7 than anticipated b!c of pre+e*isting condition i$e,$ thin :kull

Doctrine) ( Athey v. Leonat!)i) %f the defendant is liable, the presence of other non+tortuous contributing causes does not reduce defendantGs

liability$ 'he court assigns HHI liability to tortious causes (even when there are other non+tortious causes)$

=therwise, would only be able to recover when D was sole cause$

b) %s there more than one tortfeasor?i) =nce you are part of a cause, it does not matter how much you are at fault$ &ll tortfeasors (i$e$, ppl who cause

the plaintiff’s in#ury) are e>ually at fault$ (Cook v. Le!s)

c) More than one potential tortfeasor and unable to determine who is at fault

i) Bhere there must have been negligence on the part of one or both parties and the court is unable to distinguishwhich party is liable, both parties should be found e>ually at fault, and liability is apportioned e>ually$

( Lea&an)

PROI-ITYRE-OTE,ESS

+) Is cause ro4$&atere&ote?

a) 'he damage must be reasonably foreseeable as a probability (agon Mound 0 )

b) 'his was changed, and it is now enough for the damage to be a mere possibility to be a pro*imate cause (M 00 )

c) Bas they type of damage foreseeable?i) Hughes v. Lord Advocate . &s long as the type of harm is foreseeable, the e*tent or manner of the harm are not

factors

ii) olicy . lace cost on party that can better bear the cost; punishing tortfeasor

6) Is the P th$%;s2u##ed?

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a) 7ven if it’s not foreseeable that the l was thinskulled, Def is responsible for all damage that ensues as long as the

ultimate in#ury was an e*tension of the original in#ury$ 'ortfeasor takes the victim as he finds him$ (S&!th v.

Leechbra!n)

8) Is there a %o(us actus '$%ter(e%$%* force)?

a) Bhen Def’s negligence is a cause of in#ury and Def should have foreseen the likelihood of the danger occurring, Def

is not freed from liability #ust b!c l contributed to own in#ury + damages should be apportioned to the degree of faultof the parties respectively$ ( Harr!s v. 33C )

9) Is th$s a recurr$%* s$tuat$o%?

a) "escuei) "eckless acts will break the chain of causation ( Horesley)

b) :econd accident

i) %f a subse>uent accident is4 a) reasonable time+period of initial accident and b) not caused by an unreasonable

act or negligence, then considered part of the initial in#ury, and the D liable$ (e!land v. Cyr!l Carpets)ii) %f the second accident was caused by the acting unreasonable or negligent (intervening negligence) then chain

of causation is broken and the D is not liable$ ( Mc4e v. Holland )

DEFE,SES TO ,EGIGE,CE

1) Co%tr$5utory ,e*#$*e%ce?a) 9ontributory 1egligence &ct + & failure to take reasonable care for one’s own safety in circumstances where one

knows or reasonably ought to foresee danger to oneself$ %t’s a partial defence that leads to a reduction in the damages

payable by the Def b) Did take reasonable steps to avoid the danger?

i) 1o claim can be made against the D b!c the was negligent and could have prevented the in#ury by being

prudent! reasonable$ should use reasonable care to avoid in#ury$ ( (utter+!eld )

c)


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a) 'he person who for his own purposes brings on his lands, and collects and keeps there anything likely to do

mischief it if escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the

damage which is the natural conse>uence of its escape") -ust show three e#e&e%ts to f$%d str$ct #$a5$#$ty

a) 1on+natural 0se of uiescence to dangerous use of land$$) Foluntary assumption of risk

") e%ef$t to P#a$%t$ff

a) %t is either e*press or implied5) Bhere there is no benefit to plaintiff, court is less likely to imply consentc) 7ven when there is some benefit, plaintiff is entitled to protection of strict liability if plaintiff does not consent

) Defau#t

a) 1egligence on behalf of the laintiff (-ault of laintiff)$) Be don’t need a case for authority when there is a statute and statute always trumps common law

$$) 9an be apportionment or complete defense5) %ntentional+) Act of GodAct of rd Party

a) Bhere escape is caused by deliberate and unforeseeable act of a person over whom D has no control that no

reasonable person could be e*pected to foresee it and guard against it, there is no liability under $ylands v. letcher

rule$) Does not apply if D could reasonably foresee and guard against itii) $!ckards v. Loth!an

5) &ct of od is complete defense6) Statutory Author$ty

a) uestion for this to be a defense5) 9ourts will imply a legislative intention to authorize certain harm only where the damage is a necessary or inevitable

result of the authorized actc) 1arrow

$a5$#$ty for F$res (1arrow defense)

• !re 6rotect!on and 6revent!on Act 4 =nly applies to provide immunity for fires started by an act of od or an act of a /rd

party; 5accidents6

• rinciple of $ylands v. letcher applies to some fires$ 'he fire must be a 5non+natural6 use of land$ 'his principle only

applies to 5unreasonable6 fires

• 7ven an 5accidentally6 and spontaneously ignited fire might not be protected by the statute if the fire is not properly

controlled and hence spreads$ 'he 5new6 fire is not then considered to be an accidental one$

• =nus on D to establish the defense of act of od!/rd party, then burden of proof to disprove is on


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$a5$#$ty for ar& Caused 5y A%$&a#s

• laintiff must prove that animal was dangerous and that keeper knew animal was dangerous

• 'wo types of dangerous animals4

() erae naturae . animals that are dangerous as a group• :trict liability is automatically imposed

• & keeper is strictly liable even though the in#ury many not have been of the kind that led courts to categorize the

animal as +erae naturae• %e$


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) /hat are o#$cy ust$f$cat$o%s for $&os$%* ($car$ous #$a5$#$ty o% e&#oyers?( (a8ely)

a) 7mployer takes benefit and profits of business and is thus responsible for harm generated by inherent risk of theenterprise

b) 7mployer has power to select, supervise, and control his employees

c) 8ut, on the other hand, vicarious liability turns employers into voluntary insurers

I,TE,TIO,A TORTS

1) as the P ro(e% that the $%ury was caused 5y the d$rect acts of D?

a) 'he onus is on to show that they were in#ured by a direct act of the D") If the P $s successfu#> the o%us the% sh$fts to the D to ro(e that the$r act$o% was %e$ther %e*#$*e%t %or $%te%t$o%a#

(*oshen)

a) 'he word $%te%t is used to denote that the actor desires the conse>uences of his act, or that he believes that the

conse>uences are substantially certain to result from it (i$e$ knowledge of conse>uences) (*arrat v. Da!ley)

) /as the $%te%t tra%sferred?

a) %t is not essential that the in#ury be the one that was intended (Carnes) nor the that it be the tort that was intended

i) =nly general intend to harm is re>uired; the only intent re>uired is the intent of doing what the D did( (asley)$ %t

is irrelevant what the final conse>uences!outcome of your actions are

ii) Mistake is not a defense to an intentional tort ( (asely)

+) /as the act (o#u%tary?

a) Foluntariness is an essential element of an intentional tort, the act must have been directed by his conscious mind(S&!th)

6) Does the D ossess the &e%ta# a5$#$ty to arec$ate the %ature of the act?

a) & child cannot be liable for an intentional tort as it may lack the ability to appreciate the conse>uences of his actions(3!llander'

b) & mentally ill person cannot be liable for an intentional tort if he does not appreciate the conse>uences of his actions

(if conse>uences are known, but the person is unable to distinguish right from wrong, the person will be liable

( Lason)

8) Is th$s assau#t?

a) &re the necessary elements of assault present?i) &n apprehension of harm (do not have to have actual harm) (!+e, (ruce)

ii) 'he assault!apprehension of harm must be immediate or imminent (Stephens)

() 'here must be a means of carrying out the threat

iii) &n intention to physically harm() %f D’s attitude was such that, despite the threat, he did not intent to assault, there is no assault (3uberv!lle)

9) Is th$s 5attery?

a) 'he least touching of another in anger is a battery (Cole v. 3urner )

i) 'here must be (i) hysical contact; (ii) %ntention; (iii) Directnessii) 'he onus is on D to show lack of negligence and intention

b) D is liable in intentional torts even for conse>uences he did not intend$ "emoteness is not an issue here ( (ettel )

c) :e*ual Brongdoing . unwanted se*ual contact constitutes battery

:) Is th$s a% $%f#$ct$o% of &e%ta# suffer$%*?a) Billful in#uria is malicious

b) "emoteness is an issue . what would be the natural effect on reasonable persons or what is the possible result

(!lk!nson)c) 'here is no liability for intentional infliction of mental suffering unless there is so&e recogn!8able phys!cal or

psycholog!cal har&

DEFE,CES TO I,TE,TIO,A TORTS

1) Is there aare%t or actua# co%se%t? (1eeds to only be apparent) (O#br!en)

a) %f yes, has it been vitiated?

O


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i) -raud?

ii) 'hreat?

iii) ower dependency ( -orberg v. ynr!b) b) %f no, is this a medical emergency? ( Marshall )

i) %s there e*plicit holding of consent to vitiate consent? ( Mallette)") /as th$s do%e $% se#f;defe%se?

a) Bas it proportional to the original act? (Cockcro+t )

) /as th$s a defe%se of roerty?a) Did the trespasser enter the property using force? (*reen)

i) %f yes, can occupier can use force

ii) %f no, occupier must act peaceably b) Bas there a warning of defense of property? ( (!rd )

+) /as the act do%e out of %ecess$ty?

a) Bas the action based on public welfare? ( Dyer )

b) Bas this act done out of necessity that still has to be compensated for? (/!ncent )c) Bas the act done as a result of a great and imminent danger? (Southark )

d) Bhat are the policy implications? -loodgates (/!ncent )

OCCUPIERS IAIITY

1. D$d the occu$ers ta2e the reaso%a5#e care to &a2e the re&$ses safe? (ald!ck ) 'a) =r, did the invitee!licensee voluntarily assume the risk?

GOHER,-E,T IAIITY

1) Does th$s fa## u%der PACA?

a) %s this an officer, agent, or employee of the 9rown? (:$3())") Is th$s o#$cy or oerat$o%a#? ( Just )

a) olicy . made by higher level of authority, financial, must be made in good faith5) =perational . administrative, government inspections, fre>uency, manner in which carried out, time when it should

be carried outc) 'he government may have a duty of care to a plaintiff, but this duty is negated (&nns test) if there are e*plicit

statutory e*emptions or if the government’s decision was one of policy and made bona fide as a proper e*ercise of

discretion, not operation) 'he standard of care for government is not as high as the neighbour standard . the standard of care must be assessed in

light of all surrounding circumstances including budgetary restraints and the availability of >ualified personnel ande>uipment ( Just )

+) 'he government can be sued for constitutional torts, even if liability is denied in statute or common law ( Jane Doe)

9onstitutional 'orts@

PURE ECO,O-IC OSS

LL :ee under duty

H

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